Thursday, December 3, 2020
Since virtually every appellate court in the country is conducting oral arguments by video at this point (I’ll use “Zoom” for shorthand, since that appears to be the platform of choice), I thought it appropriate to offer a few pointers for Zoom arguments based on my experience serving as an appellate judge for dozens of such arguments. And I’ll preface this by saying that overall these arguments have gone very well—the technology has worked, counsel has performed admirably, and I think Zoom arguments have exceeded our expectations.
Practice with the medium: Make sure that you’re comfortable with the technology, and that you have a reliable internet connection (hard-wired if at all possible). Do a virtual moot with some colleagues to ensure that you’re ready for the argument.
Pause: Some judges are a little more reluctant to interrupt during Zoom arguments, so bear that in mind. A good practice is to pause periodically, just for a split second or so, in an effort to invite questions. Some lawyers launch into extended soliloquys with hardly a breath, which discourages questioning. You want oral argument to be a discussion so that you can tell where you need to persuade the panel.
Know your record (and cases): When you are in court, there’s a limited amount of materials that you can take with you to the podium. For Zoom arguments, however, you can be surrounded by all sorts of record cites and cases at your desk. But be wary of this – just because you have stacks of papers does not mean you can actually locate key record cites in response to a question. Consider just having the most important parts of the record at the ready, much like you would in court.
Backup plans: Crazy things happen in Zoom arguments. Sometimes counsel disappears; sometimes judges do. The important thing is to anticipate such problems (much like a difficult hypothetical) and know what to do if you’re cut off from the argument. Most courts have information sheets with telephonic numbers to call into in the event of a technological glitch, but if not, ask for this in advance of argument.
Provide a roadmap: Roadmaps are always helpful for oral arguments, but I’ve found that particularly so for Zoom arguments. Some courts don’t have a clock on the screen, and it’s not unusual for judges and counsel to lose track of time. If you’ve provided a good roadmap, it might encourage questions from the judges to focus you on the arguments they’re interested in, and it may help you manage your time better.
Seek clarification when necessary: Sometimes the judges encounter technological glitches themselves—if this occurs during a question, don’t be shy about asking the judge to repeat the question rather than risk answering the wrong question. Also, I’ve seen situations where a presiding judge may have not understood that a particular counsel was going to argue (in multi-party appeals) until too late—if you have any doubt about something like this, it’s best to clarify that you’re going to argue for x minutes and co-counsel will argue for y, or something similar.
Good luck out there! We hope to see you in person in 2021! -- Judge Pierre Bergeron